TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………….…4-9

STATEMENT OF JURISDICTION……………………………………...............................10

IDENTIFICATION OF ISSUES …………………………………………………..………….10

STATEMENT OF FACTS…………………………………………………………..……..10-12

SUMMARY OF PLEADINGS…………………………………………………………..…12-13

PLEADINGS………………………………………………………………………………...14-38

I. MR. MAVEJ MINNOHI IS LIABLE FOR COMMITTING THE WAR CRIME OF

WILFUL KILLING UNDER ARTICLE 8(2)(a)(i) OF THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT

A. WILFUL KILLING………………………………………………………………………14-26

1. The Perpetrator Killed One or More Persons: Element 1 Fulfilled………………..15-17

a. Act of killing need not be direct

b. Mr. Mavej Minnohi is the perpetrator of the killings

c. More than one person was killed

2. Such Persons Were Protected Under One or More of the Geneva Conventions of 1949:

Element 2 Fulfilled……………………………………………………………...……17-18

a. Principle of Distinction

b. Scope of protection

c. Protected persons

3. The Perpetrator Was Aware of the Factual Circumstances that Established Protected

Status: Element 3 Fulfilled………………………………………………………...…18-19

4. The Conduct Took Place in the Context of and Was Associated With an International

Armed Conflict: Element 4 Fulfilled……………………………………………..…..19-25

[1]
 a. Existence of armed conflict

b. International armed conflict

c. „In the context of‟ and „was associated with‟

5. The Perpetrator Was Aware of Factual Circumstances that Established the Existence of

an Armed Conflict: Element 5 Fulfilled……………………………...………………25-26

II. MR. MAVEJ MINNOHI IS LIABLE FOR COMMITTING THE CRIME OF

GENOCIDE BY KILLING UNDER ARTICLE 6(a) OF THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT

A. GENOCIDE………………………………………………………………….……………26-38

1. The Perpetrator Killed One or More Persons: Element 1 Fulfilled…………………27-28

a. Act of killing need not be direct

b. Mr. Mavej Minnohi is the perpetrator of the killings

c. More than one person killed

2. The Persons Killed Belonged to the Ikshavu Ethnical Group: Element 2

Fulfilled……………………………………………..……………………………………28

3. The Perpetrator Intended to Destroy, in Whole or in Part, the Ikshavu Ethnical Group, As

Such: Element 3 Fulfilled…………………………………………………….………28-33

a. Destroying Ikshavu ethnical group

b. Dolusspecialis: Specific intention to destroy

c. In whole or in part

4. The Conduct Took Place in the Context of a Manifest Pattern of Similar Conduct

Directed Against Ikshavu Ethnical Group: Element 4 Fulfilled……………………...33-34

III. INDIVIDUAL CRIMINAL RESPONSIBILITY…………………………………..…34-35

1. The “commission” requirement under the Rome Statute of the ICC is fulfilled

[2]
 2. The “ordering/ inducement”requirement is fulfilled

3. The “instigated” requirement is fulfilled

IV. SUPERIOR RESPONSIBILITY………………………………………………………35-38

1. Superior-subordinate relationship

2. Effective control

3. Knew or had reason to know

4. Failure to act

PRAYER FOR RELIEF.............................................................................................................39

[3]
 INDEX OF AUTHORITIES

STATUTES, CONVENTIONS AND OTHER PRIMARY DOCUMENTS

1. Convention (III) relative to the Protection of Civilian Persons in Time of War, Geneva,

12 August 1949………………………………………………………………………14, 18

2. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva,

12 August 1949……………………………………………………………………14,18,26

3. Elements of Crimes, Rome Statute of the ICC, UN doc. PCNICC/2000/1/Add.2

(2000)……………………………………………………………………………..….15, 27

4. Rome Statute of the International Criminal Court…… 14, 15, 26, 27, 28, 35, 36, 37, 38

5. St. Petersburg Declaration of 1868 (Declaration Renouncing the Use, in Time of War, of

Explosive Projectiles Under 400 Grammes Weight)…………………………………....17

6. Statute of the International Criminal Tribunal for Rwanda………………………….....30

7. Statute of the International Criminal Tribunal for Yugoslavia…………………………30

BOOKS

1. Claude Pilloudet al., Commentary on the Additional Protocols of 8 June 1977 to the

Geneva Conventions of 12 August 1949 (Geneva: Nijhoff, 1987)………………………38

2. IliasBantekas, & Susan Nash, International Criminal Law (London: Routledge

Cavendish, 2007)………………………………………………………………………...30

3. J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of

Civilian Persons in Time of War, 12 August 1949 (Geneva: International Committee of

the Red Cross, 1958)……………………………………………………………………..26

[4]
 4. Knut Dormann, Elements of War Crimes under the Rome Statute of the International

Criminal Court: Sources and Commentary (London: Cambridge University Press,

2003)…………………………………………………………………………………15, 26

5. Marco Sassoli and Antoine A. Bouvier, How Does Law Protect In War; Volume 1;

(Geneva: International Committee of the Red Cross, 2006)……………………….17, 30

6. Mohamed C. Othman, Accountability for International Humanitarian Law Violations:

The Case of Rwanda and East Timor (Berlin: Springer, 2005)…………………………16

7. W. Michael Reisman and Chris T. Antoniou, The Laws of War: A Comprehensive

Collection of Primary Documents on International Laws Governing Armed Conflicts

(UK: Vintage Books, 1994)……………………………………………………………...14

8. William A. Schabas, An Introduction to the International Criminal Court (Cambridge:

Cambridge University Press, 2007)…………………………………...………....29, 30, 32

9. Wilmshurst (ed.), International Law and the Classification of Conflicts (Oxford: Oxford

University Press, 2012)………………………………………………………….20, 21, 22

ARTICLES

1. C. Byron (2001), “Armed Conflicts: International or Non-International”, Journal of

Conflict and Security Law, 6(1): 63-90……………………………………………….....21

2. Tournaye Cecile (2003), “Genocidal Intent Before the ICTY”, International and

Comparative Law Quarterly, 52: 447-462………………………………………………30

3. Hans-Peter Gasser (1983), “Internationalized Non-international Armed Conflicts: Case

Studies of Afghanistan, Kampuchea, and Lebanon”, The American University Law

Review, 33: 145-161……………………………………………………………………...21

[5]
 4. Knut Dormann (2003), “War Crimes under the Rome Statute of the International

Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes”,

Max Planck Yearbook of United Nations Law, 7: 341-407……………………………...24

5. PayamAkhavan (2005), “The Crime of Genocide in the ICTR Jurisprudence”, Journal of

International Criminal Justice, 3(4): 989- 1006…………………………………………29

6. Simeon Sungi (2011), “Redefining Genocide: The International Criminal Court‟s Failure

to Indict on the Darfur Situation”, Journal of Theoretical and Philosophical Criminology,

1: 63-88…………………………………………………………………………………..29

7. Sylvain Vite (2009), “Typology of Armed Conflicts in International Humanitarian Law:

Legal Concepts and Actual Situations”, International Review of the Red Cross, 91(873):

69-94…………………………………………………………………………………..…21

8. Thomas E. Davies (2009), “How the Rome Statute Weakens the International Prohibition

on Incitement to Genocide”, Harvard Human Rights Journal, 22: 245-270……….……35

9. Tom Farer (1971), “Humanitarian Law and Armed Conflicts: Toward the Definition of

International Armed Conflict”, Columbia Law Review, 71(1): 37-72…………………...21

10. Volker Nerlich (2007), “Superior Responsibility under Article 28 ICC Statute: For What

Exactly is the Superior Held Responsible?” Journal of International Criminal Justice,

5(3): 665-682…………………...………………………………………………………..36

CASES

1. Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion of 8 July 1996,

ICJ Reports, 1996………………………………………………………………………..17

2. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States

of America),ICJ Reports, 1986…………………………………………...……………..22

[6]
3. Prosecutor v Al Bashir,ICC-02/05-01/09, Decision on the Prosecution's Application for a

Warrant of Arrest against Al Bashir, (4 March, 2009)…………………….………….…29

4. Prosecutor v. Aleksovski, IT-95-14/1-A, ICTY Appeals Chamber, Judgment, (24 March,

2000)……………………………………………………………………………………..36

5. Prosecutor v. Akayesu, ICTR-96-4-T, ICTR Trial Chamber, Judgment (2 September,

1998)……………………………………………………………………..………19, 30, 34

6. Prosecutor v. Bagilishema, ICTR-95-1-A-T, ICTR Trial Chamber (7 June, 2001)……..30

7. Prosecutor v. Blaskic, IT-95-14-A, ICTY Trial Chamber (3 March, 2000)…………35, 37

8. Prosecutor v. Brdjanin, IT-99-36-T, ICTY Trial Chamber, (1 September, 2004)……....35

9. Prosecutor v. Delalic, IT-96-21-T, ICTY Trial Chamber, (16 November, 1998)…...36, 38

10. Prosecutor v. Gacumbitsi, ICTR-01-64-T, ICTR Trial Chamber III, (17 June, 2004).…31

11. Prosecutor v. Imanishimwe&Ntagerura, ICTR-99-46-T, ICTR Trial Chamber III, (1

December, 2000)…………………………………………………..………………….….38

12. Prosecutor v. Jean de DieuKamuhanda, ICTR-96-4-T, ICTR Trial Chamber, (2

September,1998)……………………………………………………………………..…. 38

13. Prosecutor v. Jelisic, IT-95-10-T, Trial Chamber, Judgment, (14 December, 1999)...…30

14. Prosecutor v Jelisic, IT-95-10-A, ICTY Appeal Chamber, (5 July, 2001)……………...31

15. Prosecutor v. Kambanda, ICTR-97-23-S, Judgment and Sentence, (4 September,

1998)..................................................................................................................................30

16. Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, Pre- Trial Chamber I, (26

September, 2008)……………………………………………………………...….….19, 37

17. Prosecutor v. Kayishema and Ruzindana, ICTR-95-1, Judgment, (21 May,

1999)………………………………………………………………………….….15, 31, 37

[7]
18. Prosecutor v. Kordic and Cerkez, IT-95-14/2-A, ICTY Appeals Chamber, (17 December,

2004)……………………………………………………………………………..…..34, 35

19. Prosecutor v. Krstic, IT-98-33-T, ICTY Trial Chamber, Judgment, (2 August,

2001)………………………………………….……………………………...…..29, 31, 32

20. Prosecutor v. Kunarac, IT-96-23/1-A, ICTY Appeals Chamber, (12 June, 2002)….24, 36

21. Prosecutor v. Lubanga, ICC-01/04-01/06-803, Pre-Trial Chamber I, (14 March,

2012)……………………………………………………………………………..19, 21, 22

22. Prosecutor v. Musema, ICTR 96-13-A, ICTR Appeals Chamber I, (November 16,

2001)……………………………………………………………………………..15, 30, 34

23. Prosecutor v. Muvunyi, ICTR/00/55A-A, ICTR Trial Chamber, Judgment…………….30

24. Prosecutor v. Ndindabahizi, ICTR-01-71-A, ICTR Appeals Chamber, Judgment (16

January, 2007)……………………………………………………………………………15

25. Prosecutor v. Niyitegeka, ICTR-96-14, ICTR Trial Chamber, (16 May, 2003)………....30

26. Prosecutor v. Rutaganda, ICTR-96-3, ICTR Trial Chamber, Judgment, (6 December,

1999)…………………………………………………………………………29, 30, 31, 34

27. Prosecutor v. Semanza, ICTR-97-20-T, ICTR Trial Chamber, (15 May,

2003)………………………………………………………………….….30, 32, 34, 36, 38

28. Prosecutor v. Serashugo, ICTR-98-39-S, ICTR Judgment and Sentence, (2 February,

1999)……………………………………………………………………………………..30

29. Prosecutor v. Stakic, IT-97-29-T, ICTY Trial Chamber, (31 July, 2003)……...……30, 32

30. Prosecutor v. Tadic, IT-94-1-T, ICTY Trial Chamber II, Opinion & Judgment (7 May,

1997)……………………………………………………………………..9, 19, 20, 21, 24

[8]
 31. Prosecutor v. Tadic, IT-94-1-AR72, ICTY Appeals Chamber, Decision on the Defence

Motion for Interlocutory Appeal on Jurisdiction (2 October, 1995)……………….……..9

32. United States v. Von Leeb[(Nuremberg 1948) - Law Reports of Trials of War Criminals,

The United Nations War Crimes Commission, Volume XII, London, HMSO, 194]…....37

OTHER MATERIALS

1. Gregory H. Stanton, “What is Genocide?” Available on the Web, accessed on 5

November 2012, URL: http://www.genocidewatch.org/genocide/whatisit.html..............32

[9]
 STATEMENT OF JURISDICTION

The Honorable International Criminal Court (ICC) can exercise its jurisdiction under Article 5 of

the Rome Statute of the ICC (hereinafter Rome Statute), which has been invoked subsequent to

the proceedings in pursuance of Article 13(c) of the Rome Statute initiated by the Prosecutor

under Article 15 of the Rome Statute. The Prosecutor most humbly and respectfully submits to

the jurisdiction of the Honorable International Criminal Court.

IDENTIFICATION OF ISSUES

I. Whether Mr. Mavej Minnohi is liable for crime of wilful killing of civilians who were

abducted on 30 March 2008 in the province of Krubia under Article 8(2) (a) (i) of the Rome

Statute?

II. Whether Mr. Mavej Minnohi is liable for the crime of genocide of killing members of the

group for the acts of killing of people in and around the Krubia province from 05 June 2008 till

the end of June 2008, under Article 6(a) of the Rome Statute?

STATEMENT OF FACTS

Mr. Mavej Minnohi, belonging to Hoyila ethnicity, was the Prime Minister of Zavaria from 1982

till June 2007. After the Democratic Front won the 2007 general elections, Mr. Tokino,

belonging to Ikshavu ethnicity, was elected as the Prime Minister of Zavaria. The new

Government alleged that Mr. Minnohi had entrusted government funded infrastructure projects

to his supporters flouting rules. Mr. Minnohi went into hiding fearing arrest and it was suspected

that he fled to neighbouring country Pamila as he always had friendly relations with the Prime

Minister of Pamila, Mr. NionMyerere who also belongs to Hoyila ethnicity.

On 01 August 2007, Mr. Minnohi spoke to the media asking for the support of every

Hoyila person to prevent the Tokino government from politically and economically

[10]
incapacitating the Hoyilas. On 12 September 2007, the newspaper reported that an armed

political group was formed with the name Patriotic Resistance Forum (PRF), their strategy being

to pursue their agenda through armed resistance against Zavarian Government and their aim was

to overthrow the Tokino Government and restore Mr. Minnohi as the Prime Minister of Zavaria.

On 02 March 2008 Mr. Tokino in his address to the nation stated that some neighbouring

countries were interfering in the internal affairs of Zavaria to which Pamila‟s Prime Minister

replied on 05 March 2008 stating that it was their international responsibility to accommodate

refugees. After the blasting of oil pipeline on 25 March 2008, innocent civilians ranging from

540 to 660 from across the Krubia and Nikkoni provinces who were returning to their respective

villages and towns after participating in a rally in support of the government and condemning

violence of the PRF were abducted on 30 March 2008. Although, ten days after the incident, 221

abducted civilians, mainly elderly men and women were released, there was no information,

however, about the rest even four months later and as per the report of the National Human

Rights Commission of Zavaria they were suspected to have been killed by the abductors.

On 29 May 2008, Zavarian armed forces engaged in firing with nearly 100 civilian clothed

weapon wielding people in Krubia and on 31 May 2008, chief of Zavarian army informed that

the 14 people killed were Zavarian citizens and also that they were coming from Pamila after

their military training and carried weapons manufactured in Atoria, wherefrom Pamila also buys

its military equipment and weapons.

Throughout the night of 05 June 2008, nearly 500 plain clothed armed men blocked the

Naropa locality. The armed men went to the houses searching for young men, dragged them out

of their houses and warned other family members not to get out of their houses. Next day

morning, when the paramilitary and armed forces reached the locality, they encountered fierce

[11]
armed resistance from the armed men which led to the killing of 26 armed men, out of which 9

were Pamela‟s Citizens, and 23 police and armed personnel and by evening, 379 dead bodies

were found in different parts of the locality. Another 178 people were killed, along with

incidents of sexual violence and incidents of rape of 15 women on 7 June 2008. The violence

continued during the month of June and on 1 July 2008, Waltora City Ikshavu Welfare Society

claimed that more than 1000 Ikshavu ethnicity people had been killed.

At the request of the Prosecutor of the ICC, who made two charges against Mr. Minnohi

under Rome Statute i.e., war crime of „willful killing‟ under Article 8(2)(a)(i) and crime of

genocide of „killing members of the group‟ under Article 6 (a), the pre- trial chamber of the ICC

issued the trial arrest warrant against Mr. Mavej Minnohi. On 04 March 2009, Mr. Minnohi was

arrested by the police forces of Zavaria and was surrendered to the ICC on 31 March 2009.

Hence the present matter before this Honorable Court

SUMMARY OF PLEADINGS

I. MR. MAVEJ MINNOHI IS LIABLE FOR COMMITTING THE WAR CRIME OF

WILFUL KILLING UNDER ARTICLE 8(2)(A)(I) OF THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT.

The people abducted on 30 March 2008 were suspected to have been killed. These persons were

protected under Geneva Convention IV as they were innocent civilians, not participating in any

hostilities directly or indirectly, and Mr. Minnohi was aware of the same. The crime took place

in the context of an international armed conflict as the existing armed conflict between the

Zavarian government and the PRF was internationalized by the intervention of Pamila on the

side of the PRF and Mr. Minnohi was aware of the existence of an armed conflict. Hence, Mr.

Minnohi is responsible for committing the act of wilful killing.

[12]
II. MR. MAVEJ MINNOHI IS LIABLE FOR COMMITTING THE CRIME OF
GENOCIDE BY KILLING UNDER ARTICLE 6(A) OF THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT.

The essence of the crime of genocide by killing is the intent to destroy the whole or a substantial

part of a national, racial, ethnical, or religious group as such. The persons killed during 5 June

2008 till the end of June 2008 belonged to the Ikshavu ethnical group. Mr. Minnohi had the

dolusspecialis to destroy the Ikshavus as such and more than a 1000 people were killed in a

manifest pattern of similar conduct directed against the Ikshavus. Hence, Mr. Minnohi is

responsible for committing the act of genocide by killing.

III. INDIVIDUAL CRIMINAL RESPONSIBILITY

Further, Mr. Minnohi is individually liable under Article 25(3) of the Rome Statute of the ICC

for committing, ordering or inducing to commit, and instigating the commission of the crime.

IV. SUPERIOR RESPONSIBILITY

Moreover, he being the supreme leader of the PRF is liable under Article 28 of the Statute due to

conscious disregard of available information and failure to take the necessary and reasonable

measures to prevent commission of crime in a superior subordinate relationship.

[13]
 PLEADINGS

I. MR. MAVEJ MINNOHI IS LIABLE FOR COMMITTING THE WAR CRIME OF

WILFUL KILLING UNDER ARTICLE 8(2)(a)(i) OF THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT

International law condemns war crimes as violations of the laws of war by a military or civilian

person.1 The Rome Statute makes the offence of “Wilful Killing” a war crime2.

In the present matter, Mr. Mavej Minnohi has committed a war crime of wilful killing of

civilians abducted on 30 March 2008 who were returning to their respective villages and towns

while returning after attending a major rally in Waltora and thus is liable under Article 8(2)(a)(i)

of the Rome Statute.

A. Wilful Killing

To constitute the crime of wilful killing, the elements as per the “Elements of Crimes” 3 have to

be proved.4 The “Elements of Crimes” for “Wilful Killing” are as follows:

1. The perpetrator killed one or more persons;

2. Such person or persons were protected under one or more of the Geneva Conventions of

1949;

3. The perpetrator was aware of the factual circumstances that established that protected

status;

1
W. Michael Reisman and Chris T. Antoniou, The Laws of War: A Comprehensive Collection of Primary
Documents on International Laws Governing Armed Conflicts (UK: Vintage Books, 1994), p. 317.
2
Article 8(2) (a) (i), Rome Statute of the ICC. All the Four Geneva Conventions of 12 August 1949 categorizes
wilful killing as a grave breach of the Geneva Conventions. See, Articles 50, 51, 130 and 147 of the Convention (I)
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Convention (II) for
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
Convention (III) relative to the Treatment of Prisoners of War, Convention (IV) relative to the Protection of Civilian
Persons in Time of War respectively.
3
Elements of Crimes, Rome Statute of the ICC, United Nations Doc. PCNICC/2000/1/Add.2 (2000).
4
Article 9, Rome Statute of the ICC.

[14]
 4. The conduct took place in the context of and was associated with an international armed

conflict;

5. The perpetrator was aware of factual circumstances that established the existence of an

armed conflict.5

1. The perpetrator killed one or more persons: Element 1 fulfilled

a. Act of killing need not be direct

To be punished for the act of „Wilful Killing‟, the perpetrator need not physically participate6in

the act of killing.7 He may commit such crime as an individual, jointly with another or through

another person.8An act of war crime of wilful killing includes participation in the planning of

these killings.9Furthermore, the term „Wilful Killing‟ can be interchangeably used with the term

“caused death”.10

b. Mr. Mavej Minnohi is the perpetrator of the killings

Mr. Minnohi is the perpetrator of the killings.Being the supreme leader of the PRF, he had

control over every aspect of the organized armed political group. Hence, he is criminally

responsible and liable for wilful killing of civilians abducted on 30 March 2008 as he caused

death of these persons through the members of the PRF.

5
Elements of Crimes for Article 8 (2) (a) (i), Rome Statute of the ICC, UN doc. PCNICC/2000/1/Add.2 (2000).
6
Prosecutor v. Rugatanda, ICTR-96-3-T, ICTR Trial Chamber Judgment of 6th December 1999, paragraph 81;
Prosecutor v. Musema,ICTR-96-13-T, ICTR Trial Chamber Judgment of 27th January 2000, paragraph 219.
7
Emmanuel Ndindabahizi v.Prosecutor, ICTR-01-71-A, ICTR Appeals Chamber Judgment of 16th January 2007,
paragraph 122.
8
Article 25 (3) (a), Rome Statute of the ICC.
9
Prosecutor v. Kayishema, ICTR-95-1-T, ICTR Trial Chamber Judgement of 21st May 1999, paragraph 146
[Hereinafter “Kayishema”]; see Article 8(1), Rome Statute of the ICC.
10
Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources
and Commentary (London: Cambridge University Press, 2003), p. 365.

[15]
 Several facts establish that Mr. Minnohi is the supreme leader of the PRF and hence, is

aware and responsible for all the activities of the PRF. PRF is an armed political group evidently

under the leadership of Mr. Minnohi as their main aim is to restore Mr. Minnohi as the Prime

Minister of Zavaria.11 Further, in the leaflets distributed by PRF on 25 April 2008, it was stated

that the leader of PRF was working to gain support from other neighbouring countries which

corroborates Mr. Minnohi‟s earlier statement where he had stated that Hoyila people from other

countries had promised their support to him.12 Also, his statement to the media on 28 July 2008

in regard to the incidents that took place in Waltora in June 2008 stating that they were not the

handiwork of the PRF shows that he indeed had the knowledge of the activities of the PRF. 13

Thus, it is undoubtedly established that Mr. Minnohi is indeed the supreme leader of the PRF. It

is essential to hold those in leadership positions responsible because they had an additional duty

to prevent the commission of such crimes.14

c. More than one person was killed

The fact that out of the 540 to 660 people who were abducted on 30 March 2008 only 221

elderly men and women were released and the rest were not, conclusively points towards a tragic

ending for the rest of them. Moreover, the fact finding report of the Blakosa Human Rights

Union (BHRU) concluded that these people must have been taken across the border to Pamila

where the refugee camps were set up. Report further pointed out that the places near the refugee

camps in Pamila were used for mass burial and that they also found torn shirts, trousers and foot

11
Moot Court Problem, paragraph 7.
12
Moot Court Problem, paragraphs 5 and 11.
13
Moot Court Problem, paragraph 21.
14
Interview with Pierre Prosper, US Ambassador-at-Large for War Crime Issues in Bush Administration,
Washington D.C., 6 March, 2003 as cited inMohamed C. Othman, Accountability for International Humanitarian
Law Violations: The Case of Rwanda and East Timor (Berlin: Springer, 2005), p. 161.

[16]
wear were found scattered in the area around a kilometer away from the refugee camps.15

Further, the report of the independent enquiry committee constituted by the NHRC of Zavaria

alsosaid these abducted people were suspected to have been killed by the abductors as they had

neither been released nor their families had any information about them for the last five months.

These facts sufficiently prove the actusreusof killings.16

2. Such persons were protected under one or more of the Geneva Conventions of 1949:
Element 2 fulfilled

a. Principle of Distinction

The parties to the conflict must at all times distinguish between civilians and combatants.17

Attacks may only be directed against combatants and must not be directed against civilians.

Firstly set forth in the St. Petersburg Declaration,18the principle of distinction between civilians

and combatants is now codified in of Additional Protocol I of the Geneva Conventions. 19 In its

advisory opinion in the Legality of the Threat or Use of Nuclear Weapons case, the International

Court of Justice stated that the principle of distinction was one of the “cardinal principles” of

international humanitarian law and one of the “intransgressible principles of international

customary law”.20

b. Scope of protection

15
Moot Court Problem, paragraph 16.
16
Moot Court Problem, paragraph 22.
17
Marco Sassoli and Antoine A. Bouvier, How Does Law Protect In War; Volume 1; (Geneva: International
Committee of the Red Cross, 2006), p.143.
18
Preamble to St. Petersburg Declaration of 1868 (Declaration Renouncing the Use, in Time of War, of Explosive
Projectiles Under 400 Grammes Weight).
19
Articles 48 and 51, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
20
Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion of 8 July 1996, ICJ Reports, 1996,
paragraphs 78 and 79.

[17]
Article 50(1) of the Additional Protocol I defines civilians as persons who do not belong to one

of the categories referred to in Article 4 (A) (1), (2), (3) and (6) of the Geneva Convention III

which are: members of the armed forces of a Party to the conflict, members of other militias who

carry arms openly, and members of armed forces which have professed allegiance to adversary.21

Geneva Convention IV grants protection to every person except for certain categories, such as

persons engaged in hostilities or those detained as a spy or saboteur. 22 Persons protected by the

Convention are those who, at a given moment and in any manner whatsoever, find themselves, in

case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of

which they are not nationals.23

c. Protected persons

In the present matter, the persons abducted on 30 March 2008, who were killed, do not belong to

any category enumerated as combatants in Geneva Convention III. They were innocent civilians

from across the Krubia and Nikkoni provinces who were returning to their respective villages

and towns after participating in a rally in support of the government and condemning violence of

the PRF.24 The presence of elderly men and women further confirms their status as civilians.

3. The perpetrator was aware of the factual circumstances that established that protected
status: Element 3 fulfilled

21
Article 4, Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949.
22
Articles 4 and 5, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12
August 1949.
23
Article 4, Ibid.
24
Moot Court Problem, paragraph 10.

[18]
The perpetrator, in hostile situations, need not make a value judgment as to the protected status

of civilians25. Furthermore, combatants or armed groups have the ability to plan and carry out

military operations for a prolonged period of time.26 In the instant case, the persons who were

abducted by the armed men did not have the requisite capability to carry out planned combat

operations. They were innocent civilians from across the Krubia and Nikkoni provinces who

were returning to their respective villages and towns after participating in a rally in support of the

government and condemning violence of the PRF.27 Also, the presence of elderly men and

women itself confirms their protected status.

4. The conduct took place in the context of and was associated with an international armed
conflict: Element 4 fulfilled

a. Existence of armed conflict

An armed conflict exists when there is a resort to armed force between States or protracted

armed violence between governmental authorities and organized armed groups or between such

groups within a State28.

In the present case, the Patriotic Resistance Forum (PRF) is an armed political group which

has an organized structure with Mr. Minnohi as its leader and Mr. Jose Sintara as its

spokesperson who issue leaflets and statements at regular intervals.29 Their strategy is to pursue

their agenda of establishing the supremacy of the Hoyila ethnicity and restoring Mr. Minnohi as

25
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, Pre-Trial Chamber I,
Decision on the Confirmation of Charges of 30th September, 2008, paragraph 305.
26
The Prosecutor v.Thomas LubangaDyilo, ICC-01/04-01/06-803-tEN, Pre-Trial Chamber I, paragraph 234.
27
Moot Court Problem, paragraph 10.
28
Prosecutor vs. DuskoTadic, IT-94-1-AR72, ICTY‟s Appeals Chamber Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction of 2 October 1995, paragraph 70 [Hereinafter “Tadic Jurisdiction”]; ICTR,
Prosecutor v. Akayesu,. ICTR-96-4, Judgement, paragraph 620 (Sept. 2, 1998) [Hereinafter “Akayesu”]
29
Moot Court Problem, paragraphs 7, 8, 11, 13, 21.

[19]
the Prime Minister by overthrowing the Tokino led Government of Zavaria through armed

resistance against the Government of Zavaria.30 In the month of November 2007, in the adjacent

provinces of Krubia and Nikkoni, several incidents of armed attack suspected to have been

committed by the PRF took place targeting the government property. PRF also did not deny the

allegations. Violence against government property continued in the month of May 2008 as well.

Further, On 29 May 2008, Zavarian armed forces engaged in firing with nearly 100 weapon

wielding people in civilian clothes in the province of Krubia, near the Pamilian border resulting

in the death of 2 soldiers and 14 armed men. The PRF reacted to this by asking the participation

of Hoyila people in their funeral procession. Thus, the conflict in the present case amounts to an

armed conflict where there is existence of armed violence between governmental authorities of

Zavaria and an organized armed group PRF within the State of Zavaria.

b. International armed conflict

It is indisputable that an armed conflict is international if it takes place between two or more

States.31A non-international armed conflict exists “whenever there is . . . protracted armed

violence between governmental authorities and organized armed groups or between such groups

within a State.”32 Making the distinction between international and non-international armed

conflicts is particularly difficult in cases where there is foreign intervention in a non-

international armed conflict.33 An internal conflict becomes international if another State

30
Moot Court Problem, paragraph 7, 11
31
Prosecutor vs. DuskoTadic, IT-94-1-A, ICTY‟s Appeals Chamber Judgment of 15 July 1999, paragraph 84
[Hereinafter “Tadic Judgement”].
32
Tadic Jurisdiction, paragraph 70.
33
DapoAkande, “Classification of Armed Conflicts: Relevant Legal Concepts”, in Wilmshurst (ed.), International
Law and the Classification of Conflicts (Oxford: Oxford University Press, 2012), p. 35.

[20]
intervenes in that conflict.34 A foreign military intervention into conflicts taking place in the

territory of another State has an internationalizing effect on the non-international armed conflict

taking place in that State.35 Whether foreign intervention in a non-international armed conflict

transforms that conflict into an international armed conflict or not depends on which side of the

conflict the foreign State intervenes.36 Where the forces of a foreign State intervene on the side

of the rebel or non-state group fighting against a State, there will be two opposing States

involved in a conflict and, therefore, an international armed conflict will ensue. However, in

situations where a foreign State intervenes on the side of non-state groups not by way of

introduction of its forces but rather through support given to non-state groups so that it is the

non-state group who actually does the fighting against the territorial State, the question that

arises in such situations is what level of involvement by the State supporting the non-state group

is sufficient to internationalize the conflict.37

In the Tadićcase38 the ICTY Appeals Chamber held that there is an international armed

conflict between the foreign State and the territorial State only where the non-state group is

considered to be a de facto organ of the foreign State, thus, making the acts of the non- state

34
The ICTY Appeals Chamber, in its decision on the merits, noted that an internal armed conflict may become
international (or, depending upon the circumstances, be international in character alongside an internal armed
conflict) if “(i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the
participants in the internal armed conflict act on behalf of that other State.” See Tadic Judgement, paragraph 84; The
Prosecutor v. Thomas LubangaDyilo, ICC-01/04-01/06-803-tEN, Pre-Trial Chamber I decision, paragraph 209.
35
Tom Farer (1971), “Humanitarian Law and Armed Conflicts: Toward the Definition of International Armed
Conflict”, Columbia Law Review, 71(1): 37-72. See also, Hans-Peter Gasser (1983), “Internationalized Non-
international Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon”, The American University
Law Review, 33: 145-161.
36
DapoAkande, “Classification of Armed Conflicts: Relevant Legal Concepts”, in Wilmshurst (ed.), International
Law and the Classification of Conflicts (Oxford: Oxford University Press, 2012), p. 36.
37
See generally, C. Byron (2001), “Armed Conflicts: International or Non-International”, Journal of Conflict and
Security Law, 6 (1): 63-90.
38
TadićTrial Judgment.

[21]
group attributable to the State under the law of State responsibility. The Appeals Chamber held

that the relevant test of attribution with regard to the responsibility of a State for the acts of non-

state organized armed groups is a test of „overall control‟. The „overall control‟ test would be

satisfied

when the State (or, in the context of an armed conflict, the Party to the conflict) has a role in
organizing, coordinating or planning the military actions of a military group, in addition to
financing, training and equipping or providing operational support to the group. Acts
performed by the group or members thereof may be regarded as acts of de facto State organs
regardless of any specific instruction by the controlling State concerning the commission of
each of those acts.39

Moreover, if a foreign State has used force against another State, albeit indirectly by supporting a

non-state group, there is an international armed conflict between the two States. The case law of

the International Court of Justice in the Nicaragua case40 and customary international law shows

that a State is taken to have used force against another State even where it has not intervened

with its own troops or, even where it has not used forces that are de facto its own (e.g. by

organizing and sending forces) but also where it arms and trains non-state forces.41

In the present case, several facts point towards the interference of Pamila into the affairs of

Zavaria and the overall control that Pamila exercised over the PRF. Pamila is a country where

people of the Hoyila ethnicity constitute majority of the population and the Pamilian Prime

Minister Mr. Myerere also belongs to the Hoyila ethnicity. It was also suspected that Mr.

Minnohi who had always maintained good relations with Mr. Myerere was hiding in Pamila

39
Tadić Jurisdiction, paragraph 139. The overall control test has also been approved by the ICC in the Lubanga
Case. See, Prosecutor v. Lubanga, Pre-Trial Chamber Decision on Confirmation of Charges, paragraphs 210, 211
and Prosecutor v. Lubanga, Trial Judgement, paragraph 541.
40
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),ICJ
Reports, 1986, paragraph 219 [Hereinafter “Nicaragua”].
41
DapoAkande, “Classification of Armed Conflicts: Relevant Legal Concepts”, in Wilmshurst (ed.), International
Law and the Classification of Conflicts (Oxford: Oxford University Press, 2012), p. 43.

[22]
fearing arrest in Zavaria.42 Also, the recovery of weapons manufactured in Atoria , from the 14

Zavarian citizens killed, who had engaged in firing with the Zavarian armed forces and the fact

that Pamila buys its military equipments and weapons for the use by Pamilian armed forces from

Atoria itself shows that Pamila was indeed intervening in the conflict by aiding, abetting, training

and arming the PRF.43 Furthermore, 9 out of 26 armed men who were killed in the Naropa

locality on 6 June 2008 by the Zavarian paramilitary and armed forces were found to be Pamilian

citizens as per the information given by the Chief of Waltora City Police on 5 July 2008 44 also

strengthens the fact of Pamila‟s intervention. Moreover, Blakosa Human Rights Union (BHRU),

came with a fact finding report which suspected that the people abducted on 30 March 2008 must

have been taken across the border to Pamila where the refugee camps were set up for Zavarian

refugees and that those places had been used for mass burial. Also, the refutal of allegations and

refusal of the Interior Ministry of Pamila to conduct any enquiry further proves the point that the

PRF was acting on the behest of Pamila and it was under total control of Pamila.

Thus, all the above facts clearly establish that the test of overall control has been satisfied

thereby proving that the level of intervention by Pamila internationalized the conflict. Hence,

there was existence of an international armed conflict.

c. “In the context of” and “was associated with”

42
Moot Court problem, paragraph 4.
43
Moot Court problem, paragraph 12.
44
Moot Court problem, paragraphs 18, 19.

[23]
The words “in the context of” and “was associated with” an international armed conflict are

meant to draw the distinction between war crimes and ordinary criminal behaviour. 45 The words

“in the context of” indicate the concept as developed by the ICTY that “international

humanitarian law applies from the initiation of armed conflicts and extends beyond the cessation

of hostilities until a general conclusion of peace is reached.”46 Again, the words “was associated

with” mean that a sufficient nexus must be established between the offences and the armed

conflict.47

Although, prima facie the armed conflict in Zavaria that came into existence in

November 2007 when several incidents of armed attack suspected to have been committed by the

PRF took place in Krubia and Nikkoni targeting the government property was non- international

as it was between the Government of Zavaria and an armed political group, PRF within the state

of Zavaria, it was internationalized instantly as there was foreign intervention by Pamila on the

side of the PRF. And it remained international armed conflict till 30 July 2008 (the date on which

NHRC of Zavaria confirmed the killing of civilians abducted on 30 March 2008) and even after.

Several facts indicate towards the internationalization of the conflict and that the conduct

of wilful killing took place in the context of and was associated with an international armed

conflict.The fact that Mr. Minnohi had fled to Pamila and was hiding there fearing arrest, the fact

that he was the supreme leader of the PRF, and Mr. Tokino‟s speech on 2 March 2008 wherein

he stated that some neighbouring countries were interfering in the internal affairs of Zavaria by

45
Knut Dormann (2003), “War Crimes under the Rome Statute of the International Criminal Court, with a Special
Focus on the Negotiations on the Elements of Crimes”, Max Planck Yearbook of United Nations Law, 7: 341-407, p.
358.
46
Tadic Jurisdiction, paragraph 70.
47
See, The Prosecutor v. DragoljubKunarac and others, IT-96-23 an IT-96-23/1-A. ICTY Appeals Chamber
Judgement, paragraph 58.

[24]
harbouring those who were instrumental in creating unrest in Zavaria48 clearly show that Pamila

was indeed interfering in the affairs of Zavaria by supporting Mr. Minnohi and the PRF because

it was in their interest that Mr. Minnohi be restored as the Prime Minister of Zavaria and also, it

was not possible for Mr. Minnohi to constitute an armed political group without the help of

Pamila. Thus, there was internationalization of the armed conflict and the wilful killing of the

persons abducted on 30 March 2008 took place in the context of an international conflict.

Further, the fact that these civilians were returning from a rally in support of the Government and

condemning violence of PRF49 clearly establishes a sufficient nexus between their killing and

armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an
armed conflict: Element 5 fulfilled

As per Article 2(1) common to the four Geneva Conventions of 1949, any difference arising

between two States and leading to the intervention of members of the armed forces is an armed

conflict, even if one of the Parties does not recognize or denies the existence of a state of war. 50

The standard of requirement of mental element as to awareness of these factual circumstances is

lower than the standard required under Article 30 of the Statute of ICC51 .

In the present case, Mr. Minnohi had all the requisite knowledge of the existence of the

armed conflict. There are several facts which throw light on the fact that Mr. Minnohi is the

supreme leader of the PRF and hence, is aware of all the activities of the PRF. PRF is an armed

48
Moot Court Problem, paragraph 9.
49
Moot Court Problem, paragraph 10.
50
J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, 12 August 1949 (ICRC, 1958), p. 20.
51
Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources
and Commentary (London: Cambridge University Press, 2003), p.362.

[25]
political group evidently under the leadership of Mr. Minnohi as their main aim is to restore Mr.

Minnohi as the Prime Minister of Zavaria. Further, in the leaflets distributed by PRF on 25 April

2008 it was stated that the leader of PRF was working to gain support from other neighbouring

countries which corroborates Mr. Minnohi‟s earlier statement where he had stated that Hoyila

people from other countries had promised their support to him.52 Also, his statement to the media

on 28 July 2008 in regard to the incidents that took place in Waltora in June 2008 stating that

they were not the handiwork of the PRF shows that he indeed had the knowledge of the activities

of the PRF.53 Thus, Mr. Minnohi was aware of factual circumstances that established the

existence of an armed conflict.

II. MR. MAVEJ MINNOHI IS LIABLE FOR COMMITTING THE CRIME OF

GENOCIDE BY KILLING UNDER ARTICLE 6(a) OF THE INTERNATIONAL
CRIMINAL COURT STATUTE

In the present matter, Mr. Minnohi has committed the crime of genocide by killing members of

the group for the acts of killing of people in and around the Krubia province from 05 June 2008

till the end of June 2008, under article 6(a) of the Statute of the International Criminal Court.

A. Genocide

The “Elements of Crimes”54 to be proved to constitute a crime of Genocide are:

1. The perpetrator killed one or more persons

2. Such person or persons belonged to a particular national, ethnical, racial or religious

group.

52
Moot Court Problem, paragraph 5, 11.
53
Moot Court Problem, paragraph 21.
54
Elements of Crimes, Rome Statute of the ICC, United Nations Doc. PCNICC/2000/1/Add.2 (2000).

[26]
 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or

religious group, as such.

4. The conduct took place in the context of a manifest pattern of similar conduct directed

against that group or was conduct that could itself effect destruction.55

1. The perpetrator killed one or more person: Element 1 fulfilled

a. Act of killing need not be direct

To be punished for the act of „Genocide by killing‟, the perpetrator need not participate in the act

of killing physically. He may commit such crime, whether as an individual, jointly with another

or through another person.56

b. Mr. Mavej Minnohi is the perpetrator of the killings

It is important to stress at the outset that certain conduct related to the direct perpetration of acts

of genocide are also deemed to be criminal. These are: conspiracy to commit genocide; direct

and public incitement to commit genocide; attempted genocide and complicity in genocide.

Thus, an individual may be sentenced for “direct and public incitement to commit genocide”

even if no act of genocide has been committed by himself.57

In the present matter, Mr. Minnohi, the perpetrator, being the supreme leader of the PRF58,

had control of every aspect of the organized armed political group. The speech made by him to

the media on 1 August 2007 where he stated that he would strive for politically and economically

55
Elements of Crimes for Article 6(a), Rome Statute of the ICC, UN doc. PCNICC/2000/1/Add.2 (2000).
56
Article 25 (3) (a), Rome Statute of the ICC.
57
Common Article 3 of 4 Geneva Conventions of 12 August, 1949; see also Article 25(3)(e) of Rome Statute of the
ICC.
58
That Mr. Minnohi is the supreme leader of PRF has been established in this memorial. See, Section I(A)(1)(b) of
this Memorial.

[27]
establishing Hoyilas “through all possible means”59 clearly portrays that he indeed directly and

publicly incite the commission of the crime.

c. More than one person killed

In the present matter, 379 people were killed on 5 June 2008 and another 178 people were killed

on 7 June 2008 as stated by the Chief of Waltora city police. Further, on 01 July 2008, Waltora

City Ikshavu Welfare Society also claimed that more than one thousand people belonging to

Ikshavu ethnical group were killed during the month of June in and around Waltora city.60 Thus,

it is evident that a substantial number of people were killed.

2. The persons killed belonged to the Ikshavu ethnical group: Element 2 fulfilled

It should be noted that, in the present matter, there is no instance of crime against the Hoyila

ethnicity or any other ethnicity. With regard to the incidents of 5 June 2008, the violence took

place in the Naropa locality mainly inhabited by Ikshavu people61 and it was the houses of the

Ikshavus which were attacked. In the following days, young Ikshavu men and women were

targeted and destruction of property belonging to Ikshavu ethnical group continued.62 All of

these show that all the attacks were carried out against the Ikshavu ethnical group and hence,

were a clear case of Genocide.

3. The perpetrator intended to destroy, in whole or in part, the Ikshavu ethnical group, as
such: Element 3 Fulfilled

a. Destroying Ikshavu ethnical group

59
Moot Court Problem, paragraph 5.
60
Moot Court Problem, paragraphs 18, 19.
61
Moot Court Problem, paragraph 17.
62
Moot court Problem, paragraph 19.

[28]
The term “to destroy” in this element of genocide manifests itself in three dimensions viz.

physical, biological and cultural destruction of a particular group.63 In the present matter, there

was physical and biological destruction of the Ikshavu ethnical group. The Ikshavus were

physically destroyed by the means of killing of young men and women; molestation, sexual

violence and rape of women; and destruction of property belonging to them64. Biological

destruction comprises acts of imposing measures intended to prevent births within the group

such as sexual mutilation, the practice of sterilization, forced birth control, separation of the

sexes and prohibition of marriages.65 In the present matter, there was killing of Ikshavu young

men, a systematic destruction of the male members of the group which was intended to cause

detrimental consequences for the physical survival of the group as a whole,66 resulting in

biological destruction of the Ikshavu ethnical group.

b. Dolusspecialis: Specific intention to destroy, as such

The crime of genocide is considered to be the most serious and most aggravated type of crime

against humanity, and “the crime of crimes” among other international crimes. 67 The specific

nature of the crime of genocide does not lie in nature of the act itself but in the specific intention
63
William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University
Press, 2007), p. 94; see Georges A. N. Rutaganda, ICTR-96-3-T, Trial Chamber Judgment, 6 December 1999; In his
dissenting opinion in the Al Bashir case, Judge Ušacka opined that in order to show genocidal intent, there must be
intent to destroy the group in a biological or physical sense. See Judge Ušacka‟s dissenting opinion in Prosecutor v
Al Bashir,ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Al Bashir, (4
March, 2009), paragraph 58. See also, Simeon Sungi (2011), “Redefining Genocide: The International Criminal
Court‟s Failure to Indict on the Darfur Situation”, Journal of Theoretical and Philosophical Criminology, 1: 63-88.
64
Moot Court Problem, paragraphs 18, 19.
65
PayamAkhavan (2005), “The Crime of Genocide in the ICTR Jurisprudence”, Journal of International Criminal
Justice, 3(4): 989- 1006, p. 1004.
66
Krstic, Appeals Chamber Judgment, paragraph 28.
67
William A. Schabas (2007), note 63, p.37; Kambanda(ICTR-97-23-S), Judgment and Sentence, 4 September
1998, paragraph 16; Serashugo(ICTR-98-39-S), Sentence, 2 February 1999, paragraph 15; Jelisic´ (IT-95-10-A),
Partial Dissenting Opinion of Judge Wald, 5 July 2001, paragraph 1; Stakic´ (IT-97-29-T), Decision on Rule 98
bisMotion for Judgment of Acquittal, 31 October 2002, paragraph 22.

[29]
(dolusspecialis) behind its perpetration.68Specific intent means that the perpetrator must intend

that his actions will result in the destruction, in whole or in part, of a protected group.69 Existence

of intent and knowledge can be inferred from relevant facts and circumstances.70

Dolusspecialisi.e. specific intent requires that the perpetrator „clearly intended the

result‟71signifying „a psychological nexus between the physical result and the mental state of the

perpetrator‟.72 Assessed to be “puzzling words” „as such‟ was interpreted by the Chamber of the

ICTR to mean that the act must be committed against an individual only because of the reason

that the individual was a member of a specific group, so that the victim is the group itself, not

merely the individual himself.73 Also, the groups are defined to be national, ethnical, racial or

religious according to the attitudes of those who persecute them rather than pursuant to some

scientifically verifiable list of parameters.74Thus, it is enough for the perpetrators to kill the

victims because they perceive them to be of a certain ethnical group to constitute genocide.

68
Marco Sassoli and Antoine A. Bouvier, How does Law Protect in War, Volume 1 (Geneva: International
Committee of the Red Cross, 2006), p. 310 ; See also Prosecutor v Jelisic, IT-95-10-A (Appeal Chamber, 2001); see
also Article 4 of the ICTY Statute; see also Article 2 of ICTR Statute; see also Article II and III of the Genocide
Convention; see also Article 6 of Rome Convention ; see also Prosecutor v. Bagilishema, Case No.ICTR-95-1-A-T
(Trial Chamber), June 7, 2001, paragraph 55.
69
IliasBantekas, & Susan Nash, International Criminal Law (London: Routledge Cavendish, 2007), p. 388; Georges
A. N. Rutaganda, ICTR-96-3-T, Trial Judgment, 6 December 1999, paragraph 59.
70
See Tournaye Cecile (2003), “Genocidal Intent Before the ICTY”, International and Comparative Law Quarterly,
52: 447-462; see also, Prosecutor v. Semanza, ICTR-97-20, (Trial Chamber, 2003), paragraph 313. The tribunal held
that a perpetrator‟s mensreamight be inferred from his actions.
71
Prosecutor v. Musema (ICTR 96-13-A) The Trial Chamber I, 27 January 2000, paragraph 164 [Hereinafter
“Musema”]; Akayesu, paragraph 518.
72
Musema, paragraph 166.
73
Prosecutor v. Niyitegeka, ICTR-96-14 (Trial Chamber), May 16, 2003; Muvunyi, Trial Chamber Judgment,
paragraph 485.
74
William A. Schabas (2007), note 63, p. 97.

[30]
In the present matter, the intention of PRF was not to kill an individual belonging to the Ikshavu

ethnical group in particular but the Ikshavu ethnical group “as such” to which the people killed

belonged to.75Specific intent is often deduced from circumstantial evidence including the actions

and words of the perpetrator, or from the behaviour of others, as long as it is the only reasonable

inference from the totality of the evidence.76Several facts establish the dolusspecialis of the

perpetrator to destroy the Ikshavu ethnical group, as such. As soon as he was overthrown by Mr.

Tokino, who belonged to the Ikshavu ethnical group, Mr. Minnohi tried his best to incite the

people of Hoyila ethnicity which was clear from his very first speech before the media on 1

August 2007 where he stated that Mr. Tokino was targeting the Hoyila ethnicity peoples so that

there would not be any challenge to Ikshavu domination in Zavaria.77Also, although the PRF in

its leaflets found on 15 September 2007 clearly said that the Tokino government does not

represent the will of the majority people of Zavaria showing that it was concerned for all the

citizens of Zavaria, it, however, appealed only to the people of Hoyila ethnicity to rise to the

occasion which would lead to the annihilation of others.78 Violence continued right from

November 2007 till the end of June 2008, resulting in the killing of thousands of people, only a

75
That the persons killed belonged to the Ikshavu ethnical group has been established in this memorial. See, Section
II(A)(2)of this Memorial.
76
The Trial Chamber at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Jelisićcase held
that genocidal intent may be inferred from prior statements and acts of the defendant, Prosecutor v. Jelisić,. IT-95-
10-T, ICTY Trial Chamber Judgment, 14 December, 1999, paragraph 73; The Trial Chamber in Rutagandaalso cited
the cases of Kayishema and RuzindanaJudgment that held that “[i]ntent can be inferred either from words or deeds
and may be determined by a pattern of purposeful action, ICTR-96-T, 6 December, 1999, paragraph 60.
SeeFerdinand Nahimana, ICTR-96-11, Appeal Judgment, 28 Nov. 2007, paragraph 524; SylvestreGacumbitsi,
ICTR-01-64, Appeal Judgment, 7 July 2006, paragraphs 40, 41; Krstic, AJ 34; Georges A. N. Rutaganda, ICTR-96-
3-A, Appeal Judgment, 26 May, 2003, paragraph 525; Jelisic, Appeals Chamber Judgemnet, paragraph 47.,
Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-A, ICTR Appeals Chamber Judgement of 21 May, 1999,
paragraph 159.
77
Moot court Problem, paragraph 5.
78
Moot court Problem, paragraph 7.

[31]
few of which were from the Hoyila ethnicity, the rest from the Ikshavu community. All this

clearly shows that the intention of the PRF and their supreme leader Mr. Minnohi was to destroy

the Ikshavu ethnical group, as such.

c. In whole or in part

The words „in whole or in part‟, indicates a quantitative dimension. Although there is no numeric

threshold of victims necessary to establish genocide,79the numeric size of the targeted part of the

group can help determine whether it is a “substantial” part of the group as a whole.80The quantity

contemplated must be significant and where only part of a group is destroyed, it must be a

„substantial‟ part.81 It is established that „in part‟ means the crime may be committed in a very

small geographic area against a group defined by its borders.82 The reference to quantity is in the

description of the mental element of the crime, and what is important is not the actual number of

victims, rather that the perpetrator intended to destroy a substantial number of members of the

group.83 Although most authorities require intent to destroy a substantial number of group

members, but an individual criminal may be guilty of genocide even if he kills only one person,

so long as he knew he was participating in a larger plan to destroy the group.84

In the present matter, 379 people were killed on 5 June 2008 and another 178 people were

killed on 7 June 2008 as stated by the Chief of Waltora city police. Further, on 01 July 2008,

79
Semanza, ICTR Trial Chamber Judgement, paragraph 316; Stakic, ICTY Trial Chamber Judgement of 31 July,
2003, paragraph 522.
80
Krstic, Appeals Chamber Judgement, paragraphs 12, 14; RadoslavBrđanin, IT-99-36-T, ICTY Trial Chamber
Judgement of 1 September, 2004, paragraph 702.
81
Jelesic, IT-95-10-T, Trial Chamber Judgment of 14 December, 1999, paragraph 82.
82
Krstic, IT-98-33-T, Trial Chamber Judgment of 2 August, 2001, paragraph 590.
83
William A. Schabas (2007), note 63, p. 95.
84
Gregory H. Stanton, What is Genocide? Available on the Web, accessed on 5 September 2012, URL:
http://www.genocidewatch.org/genocide/whatisit.html.

[32]
Waltora City Ikshavu Welfare Society also claimed that more than one thousand people

belonging to Ikshavu ethnical group were killed. All the killings took place in and around

Waltora city.85Thus, it is evident that a substantial number of members of the Ikshavu ethnical

group were killed.

4. The conduct took place in the context of a manifest pattern of similar conduct directed

against Ikshavu ethnical group: Element 4 fulfilled

The Ikshavu ethnical group was a victim of systematic violent conduct from the very beginning

of the violence. The facts clearly establish the manifest pattern of similar conduct directed

against the Ikshavu ethnical group. The ordinary meaning (or plain meaning) as provided under

Article 31(1) of the Vienna Convention on the Law of Treaties of the term “manifest pattern”

refers to a systematic, clear pattern conduct in which the alleged genocidal conduct occurs. On

the night of 05 June 2008, in Naropa locality mainly inhabited by Ikshavu people nearly 500

armed men in plain clothes blocked the main road that goes toward the Naropa locality and also

by lanes of the locality that connect it with other parts of the city, not allowing anyone to go

towards the Naropa locality. Throughout the night, they went to as many houses as possible

searching for young men, dragged them out of their houses and warned other family members

not to get out of their houses. Next day, 379 dead bodies were found in different parts of the

locality.86Further, on 7 June 2008 business establishments and many houses of Ikshavus were

targeted young men were being caught and killed and a total of 178 people were killed in

different parts of the city, along with incidents of sexual violence and incidents of rape of 15

85
Moot Court Problem, paragraphs 18, 19.
86
Moot Court Problem, paragraph 17, 18.

[33]
women. Targeting young Ikshavu men and women and destruction of property belonging to

Ikshavu ethnical group continued during the month of June 2008.87

III. Individual Responsibility

Article 25(3) of the Rome Statute of the ICC promulgates individual responsibility for persons

who commit, give orders or induces to commit, or instigate the commission of the crimes in

question.88

1. The “commission” requirement under the Rome Statute of the ICC is fulfilled

Article 25(3)(a) of the Statute establishes individual criminal responsibility for persons who commits

the crimes in question whether as an individual, jointly with another or through another person.

In the present case, the acts were carried out by the PRF and since Mr. Minnohi is the supreme

leader of the PRF89, he is responsible for the activities of the PRF which makes him individually

liable for the crime90 under Article 25(3) (b) of the Rome Statute of the ICC.91

2. The “ordering/ inducement” requirement is fulfilled

Under Article 25(3)(b) of the Statute,ordering requires that the person giving the ordermust have the

required mensrea92. In the present matter, the perpetrator had the requisite mensrea93 and his

inducement to commit the crime is evident from the speech made by him to the media on 1 August

87
Moot Court Problem, paragraph 19.
88
Akayesu, paragraph 483; Rutaganda, paragraph 39; Musema, paragraph 121.
89
That Mr. Minnohi is the supreme leader of PRF has been established in this memorial. See Section I(A)(1)(b) of
this memorial.
90
Prosecutor v. Kordic and Cerkez, IT-95-14/2-A (Appeals Chamber), 17 December, 2004, paragraph 28;
Prosecutor v. Semanza, ICTR-97-20- T, Trial Chamber Judgement of 15 May, 2003, paragraph 361, [Hereinafter
“Semanza”].
91
Article 25(3) (b), Rome Statute of the ICC.
92
Blaskic,paragraphs 44, 42; Kordic and Cerkez,paragraphs50, 30.
93
That Mr. Minnohi had mensrea to destroy has been established in this memorial. See, Section II(A)(3)(b) of this
Memorial.

[34]
2007 where he stated that he would strive for politically and economically establishing Hoyilas

“through all possible means”.94

3. The “instigated” requirement is fulfilled

The mental element for instigation requires that the accused wished to “provoke or induce” the

commission of the crime or that he or she was aware of the “substantial likelihood”that the crime

would be committed as a result of his or her conduct.95 In the present matter, the speech made by

him to the media on 1 August 2007 where he stated that he would strive for politically and

economically establishing Hoyilas “through all possible means”96 clearly portrays that he was

instigating the commission of the crimes.

IV. Superior Responsibility

To hold a person criminally responsible under the doctrine of superior responsibility for an

international crime, the prosecution must prove four legal elements:

1. The existence of a superior-subordinate relationship between the accused as superior and

the perpetrator of the crime as his subordinate;

2. The crimes concerned activities that were within the effective responsibility and control

of the superior;

3. That the superior knew or had reason to know or consciously disregarded information

which clearly indicated that the crime was about to be or had been committed; and

94
Moot Court Problem, paragraph 5.
95
Prosecutor v. TihomirBlaskic, IT-95-14-T, Trial Chamber,3March, 2000 51, 278; [Hereinafter Blaskic],
Prosecutor v. Brdjanin, IT-99-36-T, Trial Chamber, 1 September, 2004, 269, [Hereinafter “Brdjanin”]; Kordic,
paragraphs 50, 32.
96
Moot Court Problem, paragraph 5.

[35]
 4. That the superior failed to take the necessary and reasonable measures to prevent the

criminal acts or punish the perpetrators thereof.97

1. Superior-subordinate relationship

According to Article 28 of the Statute, liability can be imputed against civilian superiors 98 in

command position.99Mr. Minnohi is the supreme leader of the PRF100 and hence, there is a

superior- subordinate relationship between the two.

2. Effective control

Superior may incur criminal responsibility for failure to take measures to repress the commission

of crimes by his subordinates,101 or individuals whom he or she exercises effective control

over.102 Effective control means that the superior had the material ability to prevent or punish the

commission of crime by subordinates.103In establishing the elements that allow for the criminal

actions of subordinates to be attributed to their leaders, moreover, the Chamber held that three

factors must apply: (i) the leader must control the organization that is used as an instrument of

the crime; (ii) the organization must be based on hierarchical relations between superiors and

subordinates, while composed of a sufficient number of subordinates to guarantee that the

97
Article 28(b) of the Rome Statute of the ICC; See, Blaškić,Appeal Chamber Judgment, paragraph 484; Prosecutor
v. Aleksovski, IT-95-14/1-A, Appeal Chamber Judgment, 24 March, 2000 (“AleksovskiAppeal Judgment”).
98
Semanza, paragraph 401, (“A superior-subordinate relationship requires a formal or informal hierarchical
relationship where a superior is senior to a subordinate.”)
99
Article 28, Rome Statute of the ICC.
100
Mr. Minnohi is the supreme leader of PRF has been established in this memorial. See, Section I(A)(1)(b) of this
Memorial.
101
Article 28 (b) (iii), Rome Statute of the ICC.
102
Prosecutor v. Delalic, IT-96-21-T, 16 November, 1998, [Hereinafter “Delalic”].
103
Prosecutor v. Kunarac, IT-96-23/1-A, [Hereinafter “Kunarac”].

[36]
superiors‟ orders will be carried out, if not by one subordinate, then by another; 104 and (iii)

authority within the organization must be such that the leader‟s orders will be complied with

automatically, in an almost mechanical manner, since the actual executioner of the order is a

replaceable “gear in a giant machine” or is otherwise so brutalized by intensive, strict, and

violent training regimens that the leader can ensure automatic compliance with his orders. 105

In the present matter, Mr. Minnohi is the supreme leader of the PRF106 and there is a superior-

subordinate relationship between the two. Thus, by virtue of his position, it is obvious that he

exercised effective control over the PRF and their activities.

3. Knew or had reason to know

The superior can be criminally responsible if he either knew, or consciously disregarded

information indicating107 that the subordinates were committing or about to commit such

crimes.108 As he is the leader of PRF109, by virtue of his position, Mr. Minnohi ought to know

about the atrocities caused by his men, which outweighs the assumption of lack of

communication110 if alleged and it leads to a presumption of knowledge.111 Further, the interview

given by Minnohi where he emphasized that the incidents of June 2008 were not the handiwork

104
Katanga &Ngudjolo, ICC-01/04-01/07-717, paragraphs 513, 514.
105
Ibid,paragraph 518.
106
Mr. Minnohi is the supreme leader of PRF has been established in this memorial. See, Section I(A)(1)(b) of this
memorial.
107
Blaskic, paragraph336; Kayishema, paragraph 92.
108
Article 28(b)(i) of Rome Statute of the ICC.
109
Mr. Minnohi is the supreme leader of PRF has been established in this memorial. See, Section I(A)(1)(b) of this
Memorial.
110
United States v.Von Leeb, [(Nuremberg 1948) - Law Reports of Trials of War Criminals, The United Nations War
Crimes Commission, Volume XII, London, HMSO, 1949].
111
Prosecutor v. Delalic, IT-96-21-T, Trial Chamber, 16 November, 1998, paragraph 385.

[37]
of the PRF but reflection of desperation and popular sentiment of the Hoyila people 112 clearly

indicates that he knows or has reason to know about the activities of the PRF.

4. Failure to act

The superior can be criminally responsible if he failed to take all necessary and reasonable

measures113 to prevent or repress the commission of the offence114 or to submit the matter to the

competent authorities for investigation.115 The absolute inaction on the part of Mr. Minnohi

makes him criminally responsible for wilful killing.

112
Moot Court Problem, paragraph 21.
113
Prosecutor v. Imanishimwe&Ntagerura, ICTR-99-46-T, ICTR Trial Chamber III, (1 December, 2000), paragraph
630; Semanza, paragraph 406.
114
Prosecutor v. Jean de DieuKamuhanda, ICTR-96-4-T, Trial Chamber, 2 September, 1998, paragraph 606; Claude
Pilloudet al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949
(Geneva: Nijhoff, 1987), p.1036
115
Article 28(b), Rome Statute of the ICC.

[38]
 PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and arguments advanced,

it is most humbly prayed before this Honorable Court that it may be pleased to declare:

a. That Mr. Minnohi is liable for the war crime of wilful killing of civilians who were

abducted on 30 March 2008 in the province of Krubia under Article 8(2)(a)(i) of the

Rome Statute of the International Criminal Court

b. That Mr. Minnohi is liable for the crime of genocide of killing members of the group

for the acts of killing of people in and around the Krubia province from 05 June 2008

till the end of June 2008, under Article 6(a) of the Rome Statute of the International

Criminal Court.

And pass any other order that it deems fit. All of which is respectfully submitted.

Date: 20 September, 2012 S/d 1. ……………

Place: The Hague, Netherlands 2. ……………

(Counsels for the Prosecution)

[39]